Gaming the Court

Lawmakers try to regulate content in video games, but Paul Smith's opposing arguments often win the day

Paul Smith, one of the leading Supreme Court litigators in the country, has a history with video games. That history, however, has come from working on a series of cases protecting the Internet and video games from government regulation.

Smith’s experience in the video game arena may be less well known to some than his experience in advancing gay equality in the courts. Smith is, after all, the gay attorney who was key in successfully arguing Lawrence v. Texas before the Supreme Court in 2003, which resulted in ending sodomy laws.

Paul Smith

Smith began his video game and Internet work on a prominent First Amendment case about the Communications Decency Act – Reno v. ACLU – which he described as the ”granddaddy” of Web cases. The law, he says, ”required all communications on the Internet, even like email, to be suitable for young children unless … screened away from children.” But the law ”was thrown out by the Supreme Court ultimately unanimously in 1997,” and Smith has spent a significant part of his career since arguing against other similar regulations – including those applying to video games.

Because of his work on the Reno case, Smith ”ended up doing cases for the video game industry for about 10 years, all around the country,” including the case decided earlier this year, Brown v. Entertainment Merchants Association, in which the Supreme Court struck down a California law that would have restricted the sale or rental of violent video games to minors.

”States and cities have tried to pass laws limiting which games can be sold to minors based on their content,” he says. “Our position has always been, ‘There’s a ratings system, and people should be able to make choices about these things themselves. It’s not obscenity, it’s protected speech.’

”And we had always succeeded in having the laws thrown out under the First Amendment, including in California, which is the case that went to the Supreme Court. The alarming moment was when they took the case at the Supreme Court. There was no apparent reason why they should.

”But it led to quite a First Amendment confrontation…which had the attention of not just the video game manufacturers, but the moviemakers and the television producers and all sorts of people who were worried that we were suddenly going to have a new exception to the First Amendment for violence and kids.

But, Smith adds, ”It didn’t turn out that way.”

On June 27, the court struck down the law, with Justice Antonin Scalia writing for the court, ”California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors.”